Citation Nr: 0312126
Decision Date: 06/09/03 Archive Date: 06/16/03
DOCKET NO. 94-30 957 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for schizophrenia.
REPRESENTATION
Appellant represented by: Washington Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Eckart, Counsel
INTRODUCTION
The veteran served on active duty from June 1971 to December
1972. In addition, he attended the United States Naval
Academy from June 1967 to June 1971.
The current appeal arose from an August 1993 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Seattle, Washington. The RO denied entitlement to
service connection for PTSD and denied reopening the claim of
entitlement to service connection for schizophrenia.
In February 1994 the veteran presented oral testimony before
a Hearing Officer at the RO; a transcript of which has been
associated with the claims file.
In March 1994 the Hearing Officer affirmed the determinations
previously entered.
In April 1996 the Board of Veterans' Appeals (the Board)
remanded the claims to the RO for additional development and
adjudicative actions.
In September 1997 the RO affirmed the determinations
previously entered.
In July 1998 the Board denied entitlement to service
connection for PTSD and remanded to the RO the claim of
whether new and material evidence had been submitted to
reopen the claim of entitlement to service connection for
schizophrenia.
In April 2000 the RO affirmed the determination that new and
material evidence had not been submitted to reopen the claim
of entitlement to service connection for schizophrenia.
In August 2000, the Board determined that new and material
evidence had been submitted to reopen the claim of
entitlement to service connection for schizophrenia, and
remanded the case to the RO for further development and
adjudicative action.
In February 2001 the RO denied entitlement to service
connection for schizophrenia on a de novo basis.
The case has been returned to the Board for further appellate
review.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's claim has been developed.
2. A chronic acquired psychiatric disorder diagnosed as
schizophrenia was not shown in active service, nor was such
demonstrated to a compensable degree during the first post
service year.
3. The probative and competent medical evidence of record
establishes that post service diagnosed schizophrenia is not
linked to service on any basis.
CONCLUSION OF LAW
Schizophrenia was not incurred in or aggravated by service,
nor may such disorder be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service medical records reveal that psychiatric evaluations
conducted in February 1967, formal USNA admission examination
and the October 1970 annual and pre commissioning examination
were normal.
The veteran denied all psychiatric symptomatology when he
completed the reports of medical history portions of the
examinations. Service medical records are negative for any
head injuries.
An April 1977 VA hospitalization summary report shows the
veteran was diagnosed with schizophrenia, schizo-affective
type. The examiner stated the veteran had exhibited a
thought disorder characterized by fears of losing touch with
reality.
An August 1977 private medical record from the Office of
Disability Insurance shows the examiner saw the veteran at
that time. He stated the veteran's problems began when he
was attending the Naval Academy, during which time he had
been "saved" by some form of religious conversion. The
examiner stated the veteran became very religious after this,
which created problems for him. He noted the veteran had his
first "breakdown" in May 1976 and had reported three
additional breakdowns since that time, the most recent one in
April 1977.
The veteran reported at that time he had lost touch with
reality, had become suspicious of others, had prayed alot,
had read his bible, had been unable to sleep, and had become
agitated. The examiner stated he was taking Haldol and
Cogentin.
A June 1977 VA psychiatric evaluation shows the veteran
reported he had become interested in religion while at the
Naval Academy, which he used to deal with the stresses and
tension he felt. He stated he received a discharge from the
service because he wanted to go into the ministry. He noted
as he became more involved in religion, he would take his
Bible readings out of context and place himself in the
biblical situation.
The veteran reported his first breakdown was in May 1976,
when he thought he was an apostle. He stated he was first
hospitalized in April 1977. The examiner entered a diagnosis
of schizophrenic reaction, paranoid type, in partial
remission.
A September 1992 private medical record shows the veteran was
seen seeking help so that he would not get fired from his
job. He reported he had applied for a security clearance and
that it was uncovered he had been diagnosed with
schizophrenia. He stated he had been warned that he was
going to get fired because he presented a security risk due
to this diagnosis. The examiner stated he informed the
veteran that there was little he could do and recommended he
seek legal counsel.
A September 1992 private medical record shows the examiner
reported that the veteran had been under psychiatric care in
the late 1970's for a thought disorder. The examiner stated
the veteran had been actively involved in treatment for the
past seven years and had requested an interview on September
8, 1992. He stated the veteran's mental status examination
did not reflect an active psychotic process and that his
thought disorder appeared to be in remission.
A February 1993 VA psychiatric evaluation report shows a
diagnosis of chronic schizophrenia, schizo-affective type.
The examiner noted that the diagnosis of schizophrenia could
also be one of paranoid type, but that his impression was
that it was schizo-affective type. He entered the following
finding in Axis IV:
"The stressors apparently were the stress of the military
academy at Annapolis, and of course it is not uncommon for a
person when they leave home and go to college to have their
initial schizophrenic break. It is interesting that he was
able to graduate from Annapolis and serve aboard ship for
period of time, and thus he did not have an acute break that
is often see[n], but more of a gradual development of his
illness, which is somewhat atypical."
An undated opinion from a VA examiner shows a diagnosis of
chronic schizophrenia. The examiner stated the veteran was
compliant with his medication, which partially controlled his
thought disorder. He noted the veteran remained continually
impaired by chronic delusional ideation, was socially limited
in his ability to be around people, and would most likely
remain severely disabled throughout the future.
In February 1994 the veteran presented oral testimony before
a Hearing Officer at the RO. His representative asserted
that schizophrenia had been incurred while the veteran was at
the United States Naval Academy. The veteran testified he
had fallen and sustained a head injury while serving on a
ship during his active duty in 1971, which he thought could
have been related to his schizophrenia. He stated he was
claustrophobic while on the ship.
An April 1994 private medical report from the Office of
Disability Insurance reflects continued complaints of
schizophrenia. The examiner noted that he or she initially
saw the veteran in December 1993 and at that time he believed
that many of his adjustment problems emanated from a head
injury received on active duty.
A June 1994 private medical examination included a review of
military history in which the veteran indicated that he had
been injured in service, but not treated. He expressed his
belief that a head injury caused his psychological problems.
He indicated that the head injury occurred aboard ship when
he was knocked down by a wave that came over the bow of the
ship and he struck the back of his head. Following the
examination he was diagnosed with schizophrenia, chronic,
with schizoaffective and paranoid features.
A May 1995 VA examination report shows a diagnosis of chronic
schizophrenia. The examiner noted the veteran wondered if
his problem did not date back to his service days.
A July 1996 VA psychiatric evaluation report shows a
diagnosis of schizophrenic disorder.
A March 2000 VA psychiatric evaluation shows a diagnosis of
schizophrenia, paranoid type. The examiner stated that there
was no clear indication that the veteran's symptoms of
schizophrenia had become manifest until after the veteran's
separation and divorce from his first wife (which the veteran
had reported occurred in 1977), which the examiner noted was
"significant in setting off his present psychological state."
The examiner stated the veteran's schizophrenic condition had
"its clear manifestations following his separation and
divorce from his wife Patricia in 1976."
VA treatment records from 1994 to 2000 reflect continued
treatment for schizophrenia. In January 1998 the veteran was
seen for "residual symptoms" of schizophrenia. He was seen
in the VA psychiatric emergency services in April 2000 for
complaints of schizophrenia after he had been fired from his
sales job in March 2000. He was noted to blame his
dysfunctional family for causing his schizophrenia. He was
seen again in July 2000 for schizophrenic symptoms and was
diagnosed with schizophrenia, chronic paranoid type. In
October 2000 he was seen again for schizophrenia symptoms and
was diagnosed with schizophrenia, chronic paranoid type vs.
psychotic disorder status post head injury and concussion in
military service.
A January 2001 VA opinion was obtained to clarify the
veteran's present symptomatology and to determine whether any
such symptomatology was present during military service or
aggravated by such service. The examiner reviewed the
veteran's early childhood experiences which were unremarkable
for any psychiatric disorders. The veteran had graduated
with honors in 1966 and had showed indication of
socialization. He was noted to have participated in tennis,
wrestling and chess teams. He did report feeling "socially
detached at times." There was no frank evidence of
psychosis during this time and his reports of later
adolescent development and early adult development showed
good adjustment.
His college and Naval Reserve Officers Training Corps (NROTC)
attendance from 1966 to 1967 revealed that he obtained
average to above average grades and he attended the U.S.
Naval Academy from 1967 to 1971. The Naval Academy program
was noted to be a strenuous program which he completed and
graduated with a degree in oceanography. There were no
indications of delusional disorder or any indication of
particular psychiatric difficulties during this time. During
his Naval service from 1971 to 1972, there was no frank
evidence of psychiatric disorder which was manifest or
treated.
The veteran was noted to have attended Baptist ministry
graduate training and taught at a parochial school from 1972
to 1976. During this time no psychological problems were
evident. He began having psychiatric difficulties around
1966 (sic) and 1977 following a bitter divorce and custody
dispute over his children whom he hadn't seen since.
The report of the Office of Disability dated in August 1977
was noted to show the veteran's report of a breakdown in 1976
and later in 1977. He was noted to be in his late 20's at
the time, which is typical of onset for paranoid
schizophrenia. Some studies were noted to indicate an onset
date as late as 35, but more typically other studies
indicated that schizophrenic patients become ill in their
20's.
The examiner noted the veteran having been treated in January
1998 by a VA hospital psychiatrist who placed him on
medication for schizophrenia. He was also noted to have been
treated by the VA hospital for schizophrenia in April and
July 2000. The examiner found these treatment records were
significant in that they do indicate that the veteran
presently suffers symptoms of paranoid schizophrenia as
indicated and cited above. There was no indication in the
veteran's childhood, adolescence or military service that
would indicate or predict a psychiatric disorder. His
psychiatric symptoms were said to have become clinically
manifest some time between 1976 and 1977. This onset time
was noted to be the typical onset for paranoid schizophrenia,
with the primary precipitating factor being the divorce and
loss of visitation with his children.
Criteria
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. 3.303 (2002).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. 3.303(d) (2002).
Where there is a chronic disease shown as such in service or
within the presumptive period under 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. 3.303(b) (2002). This rule
does not mean that any manifestation in service will permit
service connection. To show chronic disease in service there
is required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." When the disease identity is established, there
is no requirement of evidentiary showing of continuity. When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. 3.303(b) (2002).
The United States Court of Appeals for Veterans Claims (CAVC)
has held that, in order to prevail on the issue of service
connection, there must be medical evidence of a (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. 5107 (West Supp. 2002).
Analysis
Preliminary Matter: Duty to Assist
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §
5102, 5103, 5103A, 5107 (West Supp. 2002)) became law. This
law redefined the obligations of VA with respect to the duty
to assist and included an enhanced duty to notify a claimant
as to the information and evidence necessary to substantiate
a claim for VA benefits.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
VCAA, § 7(a), 114 Stat. at 2099-2100; see also Karnas v.
Derwinski, 1 Vet. App. 308 (1991). VA has also revised the
provisions of 38 C.F.R. § 3.159 effective November 9, 2000,
in view of the new statutory changes. See 66 Fed. Reg.
45620-45632 (August 29, 2001).
In this case, the veteran was provided with a copy of the
rating decision on appeal explaining the RO's decision in his
claim and statement of the case and supplemental statements
of the case containing the relevant laws and regulations.
The February 1994 RO hearing before a hearing officer and the
Board's remand decision in August 2000 advised the veteran as
to what evidence he was to obtain and what evidence the RO
was to obtain.
Additionally, in February 2001, the RO sent the veteran a
letter advising him as to what evidence it would obtain on
his behalf after it instructed him to provide names,
addresses and approximate dates of treatment for all VA and
non VA medical providers. See Quartuccio v. Principi, 16
Vet. App. 183 (2002) (addressing VA's obligation to
communicate with claimants as to evidence development).
Private and VA records of treatment were obtained. The RO
provided a VA examination of this claim pursuant to the
Board's remand instructions.
The VA examination included a medical opinion from a
competent medical authority or psychiatrist, thereby
precluding any need for further examination of the veteran a
file medical opinion. The veteran was afforded a final
opportunity to submit evidence in September 2002 directly to
the Board. There has been no indication since then that
there is any additional evidence pertinent to the claim,
which has not been obtained.
In February 2001 the RO provided the veteran with the
criteria under the new law, the VCAA, and considered his
claim on this basis. Therefore there is no need to remand
this matter for further development or for due process
consideration under the VCAA of 2000. Thus, VA's duty to
notify and assist the veteran has been satisfied, and there
is sufficient evidence of record to decide the claim.
Service Conection
Upon review of the evidence, the Board finds that entitlement
to service connection for schizophrenia is not warranted.
There is no medical evidence of any psychiatric problems in
service. There is also no evidence showing that
schizophrenia became manifest, muchless to a compensable
degree, within the one year period following the veteran's
discharge from service in December 1972. In fact,
schizophrenia was not diagnosed until more than 4 years after
discharge. Moreover, there is no competent medical opinion
linking the post service diagnosed schizophrenia to the
veteran's period of service on any basis.
The medical evidence indicates that the schizophrenia began
around 1977 or at the earliest, some time in 1976. The
precipitating factor was noted by the VA examiner in March
2000 and January 2001 to be the ending of the veteran's first
marriage and loss of his children.
The January 2001 VA opinion specifically ruled out the
possibility of the veteran's schizophrenia having its onset
in service or preexisting service and being aggravated by
service. This opinion was based on a review of records and
history taken from the veteran in which neither his
preservice years nor his time spent in active duty were
significant for any indication of psychiatric problems.
The examiner pointed out that there was no indication in the
veteran's childhood, adolescence or early adulthood which
would indicate or predict a psychiatric disorder. The
examiner also noted that the manifestation of symptoms at a
time when the veteran was in his late 20's was the typical
onset time for schizophrenia.
The Board has of course not ignored the competent medical
opinions of record linking the veteran's schizophrenia to his
military service. As the Board reported earlier, the claims
file contains opinions in 1977, 1992, 1993, and 2000 wherein
the medical specialists, both VA and private, relate onset of
the veteran's schizophrenia to service, his Naval Academy
education years, and/or a head injury. These opinions were
based strictly on the medical history provided by the veteran
himself. As has become quite clear by the official service
medical documentation of record, the veteran did not sustain
any head injury either during active service or while
attending the Naval Academy.
The examiners also noted the veteran had related ongoing
treatment for psychiatric symptomatology during the late
1970's. The official medical documentation of record does
not support this. While the veteran also was reported as
stating that he suffered from psychiatric symptomatology
during his days in service or at the Naval Academy, the
official documentation of record shows he denied any
psychiatric symptomatology or history thereof.
These medical specialists, both VA and private, did not
review the veteran's claims file. They based their expressed
opinions on exactly what the veteran had told them.
The CAVC has held that the weight of a medical opinion is
diminished where that opinion is ambivalent, based on an
inaccurate factual premise, based on an examination of
limited scope, or where the basis for the opinion is not
stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar
v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet.
App. 467 (1993).
The Board is not bound to accept medical opinions, such as
the opinions of the above discussed VA and private examiners,
which are based on history supplied by the veteran where that
history is unsupported by the medical evidence. See Black v.
Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet.
App. 229 (1993); Reonal, op. cit.; and Guimond v. Brown, 6
Vet. App. 69 (1993); and Pound v. West, 12 Vet. App. 341
(1999) where the appellant himself was a physician.
Greater weight may be placed on one physician's opinion than
on another's depending on factors such as reasoning employed
by the physicians and whether or not and the extent to which
they reviewed prior clinical records and other evidence.
Gabrielson v. Brown, 7 Vet. App. at 40.
The Board notes that the veteran has argued that his
schizophrenia symptoms may be the result of having injured
his head while in service. The veteran is not qualified to
render an opinion regarding whether a head injury could have
been the cause of his schizophrenia. See Moray v. Brown, 5
Vet. App. 211, 214 (1993) (lay assertions of medical
causation cannot serve as the predicate to reopen a claim
under 5108); see also Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992) (CAVC held that a witness must be competent in
order for his statements or testimony to be probative as to
the facts under consideration).
Furthermore, although a physician in October 2000 diagnosed
the veteran with schizophrenia, chronic paranoid type vs.
psychotic disorder status post head injury and concussion in
military service, there is no medical evidence documenting a
head injury in service.
The Board has selected the competent medical opinions of VA
examiners who more recently reviewed the claims file and had
the opportunity to see that the veteran's version of his
history is not supported by the evidentiary record.
The CAVC has held that it is not error for the Board to favor
the opinion of one competent medical expert over that of
another, provided that the Board fives an adequate statement
of reasons and based. Owens v. Brown, 7 Vet. App. 429
(1995).
The Board has, accordingly, selected the opinions of the VA
medical specialists who, on the basis of their detailed study
of the entire record as well as examination of the veteran,
discounted any association or link between his diagnosed
schizophrenia and his military service be it on active duty
or at the Naval Academy.
In sum, there exists no basis upon which to predicate a grant
of entitlement to service connection.
In short, there is no probative, competent medical evidence
linking the post service diagnosed schizophrenia to military
service on any basis.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim of
entitlement to service connection for schizophrenia. See
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
ORDER
Entitlement to service connection for schizophrenia is
denied.
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.